Devine Limited v Ipswich City Council - [2013] QPEC 72

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Devine Limited v Ipswich City Council [2013] QPEC 72

PARTIES:

DEVINE LIMITED
ACN 010 769 365
(Applicant)

v

IPSWICH CITY COUNCIL
(Respondent)

FILE NO:

1107/2012

DIVISION:

Planning & Environment

PROCEEDING:

Originating Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

6 November 2013

DELIVERED AT:

Brisbane

HEARING DATE:

17 and 18 October 2012

JUDGE:

Andrews SC, DCJ

ORDER:

Amended Originating Application Dismissed

CATCHWORDS:

Where preliminary approval granted – where no appeal – whether approval in conflict with the planning scheme – whether no evidence of traffic impact – whether no evidence of economic impact – whether no consideration of relevant matters – whether amended application was a minor change – where assessment manager treated substantially different development as minor change – whether to apply s 440 of the Sustainable Planning Act to excuse noncompliances in consequence of treating the amended application as a minor change

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680

Dunghutti Elders Council (Aboriginal Corporation) RNTBC

v Registrar of Aboriginal and Torres Strait Islander

Corporation [2011] FCA 370

Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Prasad v Minister for Immigration and Ethnic Affairs (1985)

6 FCR 155

Shop, Distributive and Allied Employees Association v National Retail Association (No. 2) [2012] FCA 480

Judicial Review Act1991 (Qld)

Sustainable Planning Act2009 (Qld), s 242, s 329(1)(b), s 350(1)(d)(i), s 440, s 456(1)(a)

Aronson, Dyer and Groves Judicial Review of Administrative Action Fourth Edition, at p 282

COUNSEL:

Fynes Clinton of counsel for the Applicant
Flannagan SC and Brien of counsel for Respondent

SOLICITORS:

McCullough Robertson for the Applicant
Clayton Utz for the Respondent

Nature of the proceeding for declarations and orders
The issues and one commercial explanation for the proceeding
Declarations and Orders Sought by Devine

Facts
First Issue: was the approval in conflict with the planning scheme?
Traffic: Was there no evidence of traffic impact? Did Council fail to consider traffic impact on the local and broader road network?
First Economic Impact Issues: Was there no probative evidence of economic impact? Would no reasonable assessment manager have accepted the evidence?
Second Economic Impact Issue
Issue 5: The application by Council was changed. Was it only a “minor change” as Council contends?

Nature of the proceeding for declarations and orders

The applicant, Devine Limited, (Devine) is a land developer and challenges the validity of a decision by Ipswich City Council (Council) to approve another developer’s application. Devine did not make a submission to Council about the other developer’s application and did not appeal the merits of the decision. Devine contends that Council made errors of law when deciding to approve; that the proper consequence would be a fresh public notification of the developer’s application, with the public at liberty to make submissions, and with referral agencies at liberty to make responses and with Council obliged to reconsider the application with the benefit of a declaration about Council’s errors of law.

This is not a merits appeal. The proceeding is analogous to a judicial review proceeding where the court determines whether a decision is legally flawed.

Section 456 of the Sustainable Planning Act 2009 (SPA) allows any person to bring a proceeding in the court for a declaration about a matter done, to be done or that should have been done for the SPA.[1] Whether a declaration is made lies within the discretion of the Court.[2] Devine bears the onus of proving matters necessary to the declarations it seeks and of persuading the court that declarations and orders should be made.
[1]Section 456(1)(a) of SPA
[2]Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144 at [2] and [110]

The issues and one commercial explanation for the proceeding

Proposed uses were marked on a planning scheme map.[3] Other parts of the planning scheme reinforced the impression created by the map. The map designated certain land owned by Council as “Local Neighbourhood Centres Proposed”. That designation suggested a local neighbourhood centre of no greater than 2,000m² gross floor area (GFA); too small to fit a full-line supermarket such as those operated by Coles or Woolworths.
[3]Book of legislation vol 1 tab 15 map 3 Commercial and Community Centres and Business and Industry Lands.

Contrary to that expectation, Council gave preliminary approval for a material change of use to a “Major Neighbourhood Centre” with a GFA of 4,000 m² on Council’s land. Land for that centre was only one component of a larger parcel the subject of the application.

Devine owns land marked on that map as “Major Neighbourhood Centres Proposed”. That marking suggested a future approval for Devine’s land for a neighbourhood shopping centre of greater than 2,000 and less than 6,000m² GFA. That GFA is big enough for a development that could be anchored by a major neighbourhood full-line supermarket of the Coles or Woolworths type. Consistently with the marking, Devine eventually obtained preliminary approval for a material change of use for such a development.

So, the proposed uses marked in the map had suggested a future in which Devine could develop a full-line supermarket in a shopping centre up to 6,000m² GFA and Council could develop on its land a small centre without a full-line supermarket as an anchor. Devine contends the two centres will compete.

Devine submits the approval given for Council’s land was in conflict with the planning scheme. Apart from the proposed uses marked on a planning scheme map, Devine points in particular to a portion of the planning scheme dealing with Council’s land which provides[4]:

“The following uses … are inconsistent with the outcomes sought and are not located within the Local Retail and Commercial Zone; and constitute undesirable development which is unlikely to be approved¾
(p)shopping centre, if the use exceeds … 2,000m² of gross floor area in the LC2 Sub Area;”

[4]Book of legislation vol 1 tab 14 Ipswich Planning Scheme Part 4 Division 10 4.10.5(3)(p).

First Issues: was the approval in conflict with the planning scheme? Was the preliminary approval which was granted, (a part of which resulted in preliminary approval for a 4,000m² GFA development on Council’s land) in conflict with the planning scheme. Council contended at the time that there was no conflict and continues to. I determined that there was no conflict.

There was a subsidiary issue if the first issue had been decided against council. Devine accepts that an approval may be given in conflict with a planning scheme, but contends it may occur only if Council follows the process required to satisfy SPA s 329 (1)(b) which begins with identifying grounds which could justify a decision, despite conflict. Devine contends that Council did not follow the process. Council in its notice of disputed facts denied that it did not follow the process. However, Council made no submissions to rebut the prima facie inference that Council did not follow the process which would be appropriate if it had identified a conflict. It became unnecessary to consider this issue.

Second Issues: Traffic: Was there no evidence of traffic impact considered by Council? Did Council fail to consider traffic impact on the local and broader road network?

First Economic Impact Issues: Was there no probative evidence of economic impact? Would no reasonable assessment manager have accepted the evidence?

Second Economic Impact Issue: Was there no probative evidence about the impact on the viability of the centre proposed for Devine’s land? Would no reasonable assessment manager have granted the approval having regard to the evidence?

Issue 5: The application by Council was changed. Was it only a “minor change” as Council contends?

Issue 6: If Devine establishes those matters and those errors by Council, Devine contends that the proper relief is for Council to restart the IDAS process at a stage before the public notification stage. Council raises discretionary considerations against this remedy. If there was a conflict with the planning scheme and a failure to follow the steps required to satisfy SPA s 329, Council argues its failure can be and should be excused under SPA s 440. Devine argues that as a matter of law the failure cannot be excused or, alternatively, if it may be excused, it should not be excused because “the common material available for inspection by prospective submitters materially misinformed them”[5] that “there is no conflict between this proposal and the scheme”.[6] (However, it is not part of Devine’s case that Devine or other potential submitters failed to submit because of the misleading nature of the material that was publicly notified.[7]Council put Devine on notice that it is not part of Devine’s pleaded case that the published material was misleading[8] and Devine did not amend.)
[5]T1-14 l 18-19
[6]T1-14 l 10-12
[7]T1-21 l 56 to T1-22 l 6 for the Council’s request for clarification and T1-22 l 30-57 for Devine’s response
[8]T1-21 l 30-32

Declarations and Orders Sought by Devine

Devine applies for a declaration pursuant to s 456 SPA that:

(a) the change made by the Respondent on or about 20 May 2011 to development application no. 6252/2010 ("DA6252"):-

(i) resulted in a substantially different development from that originally proposed; and

(ii) for that reason, was not a minor change within the meaning of s 350 SPA;

(b) upon the making of that change, the IDAS process for DA6252 started again from the start of the acknowledgement period;

(c) DA6252 remains in the application stage of the IDAS process, and has not reached the decision stage;

(d) the Respondent’s decision purporting to approve DA 6252 was beyond its power;

(e) the preliminary approval purportedly granted by the Respondent in respect of DA6252 has no legal force or effect, and never had any force or effect.

Devine applies, in the alternative, for a declaration pursuant to s 456 SPA that the decision purporting to approve DA6252, has no legal force or effect, and never had any force or effect, because:

(a) the development application for DA6252, including supporting material, did not include material concerning traffic impacts and economic impacts which was essential to its proper consideration according to law; and

(b) the decision purporting to approve DA6252 was accordingly a decision;-

(i) made in circumstances where there was no evidence before the Respondent of matters which were essential to its proper consideration, and, or alternately

(ii) so unreasonable that no reasonable assessment manager could have made it.

Devine applies in the further alternative, for a declaration pursuant to s 456 SPA that the decision purporting to approve DA6252, in so far as it purported to approve a material change of use for a Major Neighbourhood Centre (4,000 m2 gross floor area), has no legal force or effect, and never had any force or effect, because:-

(a) in purporting to make the decision, the Respondent failed to comply with the requirements of s 329 SPA, and therefore made a decision contrary to law; and, or

(b) alternately, in so purporting, the Respondent made a decision which was so unreasonable that no reasonable assessment manager could have made it.

In addition, Devine applies for an order pursuant to section 456 of the SPA:-

(a) that the Respondent’s purported decision to approve DA6252, and the preliminary approval purportedly granted by that decision, be set aside or cancelled;

(b) if the first or second declarations are granted, that DA6252 be returned to the application stage under IDAS, and that, following any further change necessary to DA6252 consonant with the Court’s judgment:-

(i) the Respondent issue an acknowledgement notice for DA6252 as changed pursuant to the notice of change dated 16 May 2011, and further changed consonant with the Court’s judgment;

(ii) (ii) the Respondent give a copy of:

a)the acknowledgment notice for DA6252 as changed;
b)DA6252 as changed; and
c)the prescribed fee, to each referral agency;

(c) if the third declaration is granted, directing the Respondent that it must refuse to approve DA6252 in so far as it purports to seek approval for material change of use for a Major Neighbourhood Centre.

(d) Such further and other Directions and Orders as the Court deems appropriate.

Facts

The land, the subject of DA6252 is: owned by Council; situated at 534-598 Redbank Plains Road, Redbank Plains and 6001 Coldham Street, Redbank Plains; described as Lot 3 on SP197482 and Lot 300 on RP139827. Part of the land was included within the Recreation zone, part in the Residential Low Density zone and part in the Local Retail and Commercial zone (Sub Area LC2) in the Ipswich Planning Scheme 2006 (Planning Scheme). The land covers an area of 13.74 hectares and was and is still vacant.

A business unit of Council made a decision to apply for a preliminary approval for material change of use (MCU) over the land, including for variations of the planning scheme pursuant to s 242 of SPA. It was necessary to make that application to the Council in its role as assessment manager. The legality of Council as a prospective developer of its own land applying to Council as assessment manager is accepted by Devine.[9]
[9]Devine’s submissions para 3

Council engaged experienced external town planning and economic consultants to prepare the necessary development application material. Before lodging the application the usual pre-lodgement process was undertaken between the consultants and Council officers and that included a number of informal discussions regarding technical aspects of the application and compilation of application material.[10]
[10]Para 13(a) of the affidavit of Natalie Plumbe

On 16 September 2010, the Council, as development applicant, through its agent Humphreys Reynolds Perkins (HRP), applied to itself as assessment manager for a preliminary approval for material change of use, including variations of the planning scheme under s 242 SPA, for development in accordance with the Redbank Plains Road Centre Plan of Development (Original MCU Application).

The Original MCU Application sought a preliminary approval for identified uses on the land and sought to vary the Planning Scheme by introducing a plan of development to act as the development code for the whole of the land in all three zones. The extent of the approval sought and the variations to the Planning Scheme are set out in the Redbank Plains Road Centre Plan of Development (the 2010 Plan of Development) which formed part of the application material.

The 2010 Plan of Development identified the indicative location of the residential (10 hectares), recreational (3 hectares) and local retail and commercial (6000m²) precincts on the site and set out the proposed assessment framework including specific levels of assessment and assessment criteria that would apply, with some varying the effect of the Planning Scheme. The indicative nature of the precinct boundaries allowed for flexibility in future applications when detailed design was undertaken.[11]
[11]Para 12 of the affidavit of Natalie Plumbe

The proposal included a Residential 20 precinct that allowed a minimum density of 20 dwellings per hectare and a Residential 30 precinct that allowed a minimum density of 30 dwellings per hectare. The approval sought to set the minimum residential densities for the site. When a development permit is sought those densities could increase.

The shopping centre aspect of the proposed application was described as a use with a gross floor area (GFA) of up to 2000m².

Thus, the Original MCU Application included the following land uses:

(a) Residential Precinct (with Residential 20 Precinct allowing a minimum density of 20 dwellings per hectare and a minimum density of Residential 30 Precinct allowing 30 dwellings per hectare);

(b) Local Neighbourhood Centre Precinct (which allows, amongst other things, a code assessable application for a MCU for a shop or bulky goods and shopping centre with a maximum GFA of up to 2,000m2); and

(c) Recreation and Open Space Precinct.

The level of assessment in the 2010 Plan of Development, for a business use and a shopping centre, reflected the level of assessment required in the Planning Scheme, namely code assessment if not located within an existing building and if less than 2000 m² GFA or impact assessable if the use exceeds 2000 m² GFA.

A preliminary approval approves development but does not authorise development to take place.[12] After a preliminary approval is granted, development permits must be obtained before any development may occur on a site.[13] In assessing and deciding the application the assessment manager was aware of implications that flowed from the decision to grant a preliminary approval.[14]
[12]Section 241(1) of SPA
[13]Section 243 of SPA
[14]Para 11 of the affidavit of Natalie Plumbe

Prior to the lodgement of the Original MCU Application, Council had undertaken extensive network road planning work in the area of the proposed development including the Coldham Street Extension.[15]On 22 September 2010 the Original MCU Application was referred to the Works Department of Council for review and advice as to whether any additional information was required and whether an information request ought to be made seeking a traffic report.[16]
[15]Para 45 of the affidavit of Natalie Plumbe and paras 21, 22 and 23 of the affidavit of Alexander Prasser
[16]Para 13 and 15 of the affidavit of Alexander Prasser

On 30 September 2010, Council, pursuant to s. 267 of SPA, issued an acknowledgment notice for the Original MCU Application which was received by HRP on 1 October 2010. The acknowledgement notice noted that:

(a) the Original MCU Application was impact assessable;

(b) the Department of Transport and Main Roads (DTMR) was a concurrence agency;

(c) the Department of Environment and Resource Management (DERM) was a concurrence agency;

(d) the Department of Infrastructure and Planning (DIP) was a concurrence agency; and

(e) Powerlink was an advice agency.

Prior to 18 October 2010 each of the referral agencies, DTMR, DERM, DIP and Powerlink were provided with a copy of the Original MCU Application .[17] Each of the referral agencies provided a response with the last received from DTMR by 24 May 2011.[18]
[17]Para 16(c) of the affidavit of Mitchell Grant
[18]Para 16(j), (l), (n) and (q) of the affidavit of Mitchell Grant

On 19 October 2010, Council received confirmation from HRP that the Original MCU Application had been given to DTMR, DERM, DIP and Powerlink.

On 28 October 2010, Council received an “acknowledgement of application” from DTMR dated 26 October 2010 for the Original MCU Application.

On 29 October 2010, Council received a copy of a concurrence agency response from DERM which was addressed to HRP for the Original MCU Application.

On 9 November 2010, Council received an advice agency response from Powerlink which was addressed to HRP and dated 1 November 2010 for the Original MCU Application.

On 3 November 2010, Council received notice that DTMR issued HRP with an information request dated 2 November 2010 for the Original MCU Application.

On 9 December 2010, Council received DIP’s concurrence agency response for the Original MCU Application.

On 14 January 2011, Council issued an amended acknowledgement notice for the Original MCU Application.

On 15 April 2011 Devine made a development application for a preliminary approval for material change of use to establish a Major Neighbourhood Centre at School Road (Mountview Estate) and Council knew this. Devine’s application was ultimately granted.

On 11 May 2011, Council received HRP’s response dated 9 May 2011 to DTMR’s information request.

On 12 May 2011, Council received notice from DTMR dated 10 May 2011 that DTMR has received HRP’s response to its information request.

On 16 May 2011, Council received a similar notice from DTMR dated 11 May 2011 that DTMR had received HRP’s response to its information request.

On 17 May 2011, Council (as development applicant), acting through HRP, gave itself as assessment manager written notice of an application to amend the Original MCU Application pursuant to s351 of SPA (Amended MCU Application).

On 18 May 2011, an email provided further information about the changes.[19]At this stage public notification had not commenced.
[19]Para 19 of the affidavit of Natalie Plumbe

The changes sought in the Amended MCU Application included:

(a) Amending the area of land proposed to be subject to the Plan of Development (removing the eastern portion of the subject site from the development area);

(b) Replacing references to the “draft Traditional Neighbourhood Design Code" (which was a draft, “non-planning scheme” code at the time of making the Original MCU Application) with references to the “Traditional Neighbourhood Design Code" which took effect as a Code of the Ipswich Planning Scheme (Part 12, Division 3) on 3 May 2011. The changes also include amendments to the specific references to the Code within the proposed Plan of Development;

(c) Increasing the area of the proposed Neighbourhood Centre to 4,000m2 GFA, as supported by the Needs Analysis contained herein (the proposed neighbourhood centre still being a “Shopping Centre” as defined in Schedule 1 of the Planning Scheme, but instead categorised as a “Major Neighbourhood Centre” at Part 4, Division 10 (Local Retail and Commercial Zone);

(d) Making a minor change to the geometry of the proposed internal roads to align with the actual location of the Collingwood Drive extension on land to the north of Redbank Plains Road, and

(e) Making a minor change to the configuration of the Neighbourhood Centre (the Major Neighbourhood Centre Precinct) to create a Precinct with enhanced function, interface and frontage to Redbank Plains Road.

Council submissions emphasised that the Amended MCU Application sought “changes in the assessment triggers for a proposed neighbourhood centre of up to 4000 m² GFA”.

The Amended MCU Application included a town planning report, an amended Plan of Development, an economic needs assessment report and an access and mobility plan.[20]
[20]Para 18 of the affidavit of Mitchell Grant

After considering the relevant material and Guideline 06/09 the assessment manager, by its delegate Ms Plumbe, decided to accept the proposed change as a “minor change” having regard to its definition in s.350 of SPA.[21] In relation to the shopping centre precinct Ms Plumbe’s view was that the Amended MCU Application by contemplating a shopping centre up to 4,000m² GFA did not change any specific uses for which approval was sought but rather the assessment triggers[22] for an allowable maximum. That is, instead of remaining code assessable to only 2,000m² GFA a shopping centre use would remain code assessable to 4,000m². Further, she regarded the change in the indicative shopping centre precinct footprint as a minor change. Ms Plumbe honestly held these opinions. The correctness of her opinions is in dispute.
[21]Para 22 and 23 of the affidavit of Natalie Plumbe
[22]Para 18(i) of the affidavit of Natalie Plumbe

By email dated 23 May 2011, the assessment manager confirmed that it agreed to accept the changes as a minor change.[23] A consequence of the acceptance of the Amended MCU Application as constituting a minor change was that s.353 of SPA was invoked and the IDAS process did not stop and s.355 had no operation. The Amended MCU Application continued through the IDAS process.
[23]Para 20 of the affidavit of Mitchell Grant

On 26 May 2011, Council received DTMR’s concurrence agency response dated 24 May 2011 to the Original MCU Application.

By letter dated 26 May 2011, HRP informed Council that as a result of the Amended MCU Application Queensland Urban Utilities had requested further information and HRP requested an extension of the time frame to commence public notification.

By letter dated 26 May 2011, Council informed HRP that the time frame to commence public notification had been extended to 11 July 2011.

On 26 May 2011 Devine lodged a changed application[24] that included a new service station use.[25]
[24]Para 18 of the affidavit of Michael Simmons
[25]Para 19 of the affidavit of Michael Simmons

On 2 June 2011 further changes were made to Devine’s application that the Council accepted as minor changes.[26]
[26]Paras 24 to 26 of the affidavit of Michael Simmons

On 30 June 2011 an information request was made to Devine seeking an updated economic impact assessment addressing deficiencies in the report submitted, a traffic report focussed on demonstrating the capacity of the available land for road purposes to meet the needs of necessary upgrade works and a plan of development.[27] The traffic report was not required to address the traffic generation from the proposed development, but rather land requirements for future road works in circumstances where the land the subject of the application was in private ownership. Devine responded to the information request on 30 September 2011.[28]
[27]Para 29 of the affidavit of Michael Simmons
[28]Para 32 of the affidavit of Michael Simmons

On 6 July 2011, the Council received Powerlink’s advice agency response dated 5 July 2011 to the Amended MCU Application. Powerlink requested the Council treat its response as a properly made submission.

Public notification of the Amended MCU Application was carried out between 9 June and 26 July 2011. During that period Devine did not make a submission to Council and did not object to the preliminary approval being granted. Thus, Devine did not secure for itself a submitter’s right to appeal the assessment manager’s ultimate decision and to have the court decide the matter afresh as assessment manager. Despite Devine’s argument that potential submitters were misinformed that there was no conflict with the planning scheme, Devine does not contend that it was misled or that being misled was the cause of its failure to make a submission objecting to the preliminary approval.[29]Devine does not contend that any other potential submitter failed to submit because of the allegedly misleading nature of the material which was publicly notified.[30]
[29]T1-22 l 40
[30]T1-21 l 56 to T1-22 l 6 for the Council’s request for clarification and T1-22 l 30-57 for Devine’s response

On 5 August 2011, the assessment manager received a letter from Devine expressing concern about Council’s development application.[31] The letter stated that Devine did not seek that the letter be considered as a properly made submission[32]. This correspondence was acknowledged by the assessment manager and reviewed in the assessment of the Amended MCU Application.[33]
[31]Para 32 of the affidavit of Mitchell Grant
[32]Para 33 of the affidavit of Mitchell Grant
[33]Paras 34 and 36(a)(f) of the affidavit of Mitchell Grant

On 8 September 2011, Council’s Mr Grant prepared a development report to Ms Plumbe of his assessment and recommendation for approval of the Amended MCU Application, subject to conditions. The differences between the Amended MCU Application and the planning scheme were included in the development report. Mr Grant in his memorandum of 8 September 2011[34] refers to the Needs Assessment done by an experienced economist Mr Norling. He relied upon it in making his development report. He referred to it in his report to Ms Plumbe in the following terms –

The Major Neighbourhood Centre precinct permits a code assessable level of assessment for a shopping centre, shop or bulky goods sales of up to 4000 m² of gross floor area (GFA). Under the sites existing local retail and commercial zoning, the planning scheme permits a code assessable level of assessment for a shopping centre, shop or bulky goods sales of up to 2000 m² of GFA. The additional 2000 m² of retail GFA permissible under the plan of development has been supported by a Needs Assessment prepared by Norling Consulting Pty Ltd, which states that while the subject site has been ear marked for the development of a local neighbourhood centre, the catchment area population reaching 7000 persons by 2021 is adequate to support a full line supermarket. Furthermore, it states that the opening of a 4000 m² centre including a full line supermarket would result in limited economic impacts upon the surrounding competitive network and would not inhibit the function or vitality of the competing retail centres.

Mr Grants reference to Mr Norling’s report did not make note of a possibility that approval may delay Devine’s development of a shopping centre at Mountview. Mr Grant did not include in his development report an opinion of his own or of Mr Norling implying any risk to the viability of a proposed shopping centre at Mountview.

[34]Page 624-625 of the exhibits to the affidavit of Mitchell Grant

By letter dated 14 September 2011, Council issued a decision notice purporting to approve the Amended MCU Application, and to give a preliminary approval for a material change of use, subject to conditions (MCU Decision Notice). Ms Plumbe was the delegate of the assessment manager who made the approval decision. She considered the Amended MCU Application, she identified that Mr Norling’s Needs Assessment Report supported the development of a shopping centre of up to 4000 m² on the relevant site stated it would not undermine the role and function of existing centres and would provide a net community benefit. [35] Ms Plumbe further identified that in respect of the planned Mountview centre (the Devine project), the Needs Assessment Report indicated that while that centre might be delayed until a greater proportion of residential development was complete, there was much land designated for residential development which would allow several centres to function successfully in this part of Ipswich City.[36] I accept Ms Plumbe’s evidence that traffic impacts were also considered by her in making the decision.[37]Whether her consideration of economic impact and traffic impact was effective or whether there was adequate economic and traffic evidence for her consideration remain separate issues.
[35]Paragraph 32(c) of the affidavit of Natalie Plumbe
[36]Paragraph 32(d) of the affidavit of Natalie Plumbe
[37]Para 29 of the affidavit of Natalie Plumbe

On this date Devine’s application was still in the information and referral stage as an information request was outstanding[38]and Ms Plumbe knew this.
[38]Section 293 SPA

On 21 October 2011 a further information request was made to Devine in relation to the economic assessment and Devine responded on 31 October 2011[39]. Public notification in respect of Devine’s application was carried out between 11 October 2011 and 25 November 2011[40].
[39]Paras 35 and 37 of the affidavit of Michael Simmons
[40]Para 38 of the affidavit of Michael Simmons

By letter dated 10 November 2011, Council issued a notice purporting to be a negotiated decision notice for the Amended MCU Application (MCU Negotiated Decision Notice).

By letter dated 25 November 2011, Council issued a notice purporting to be a negotiated decision notice for the amended MCU Application (Second MCU Negotiated Decision Notice).

On 1 February 2012 Council approved Devine’s application for preliminary approval subject to conditions, together with an approved Plan of Development dated 25 January 2012.[41]

[41]Para 44 of the affidavit of Michael Simmons

First Issue: was the approval in conflict with the planning scheme?

I have annexed from the planning scheme those clauses relied upon by the parties in their submissions on the issue of whether there was a conflict.

The SPA provides rules which bound the assessment manager in determining whether to approve the Amended MCU Application. The relevant rules were:

“329 Other decision rules
(1)The assessment manager’s decision must not conflict with a relevant instrument unless -
…
(b)There are sufficient grounds to justify the decision, despite the conflict;
…”

The planning scheme was the only “relevant instrument” within the meaning of the SPA s 329(1) for that decision.

From the planning scheme there are several parts relied upon by Devine as creating conflict between the planning scheme and the aspect of the preliminary approval of the Amended MCU Application which had the effect of permitting a development of a shopping centre to 4000 m² GFA on council’s land.

Devine relied primarily upon the following parts of the planning scheme to establish conflict:-

1. the area proposed for retail development is zoned Local Commercial, sub area LC2;

2. clause 4.10.4(2)(e)(ii) states a specific outcome for development in the LC2 Sub Area that retail development: range in size from a single shop to small clusters of shop less than 2000 m² GFA;

3. clause 4.10.4(2)(e)(iii) states a specific outcome for development in the LC2 Sub Area that retail development: generally serve a population of less than 5,000 persons;

4. clause 4.10.5(2) identifies uses and development which are consistent with the outcomes sought for the Local Retail and Commercial Zone “if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds”, with clause 4.10.5(2)(p) then so identifying:-

“shopping centre if the use is less than 6,000 m² of gross floor area in the LC1 Sub Area or 2,000 m² of gross floor area in the LC2 Sub Area”;

5. clause 4.10.5(3) identifies uses and development which are “inconsistent with the outcomes sought and are not located within the Local Retail and Commercial Zone; and constitute undesirable development which is unlikely to be approved”, with clause 4.10.5(3)(p) then so identifying:-

“shopping centre, if the use exceeds 6,000 m² of gross floor area in the LC1 Sub Area or 2,000 m² of gross floor area in the LC2 Sub Area”.

The issue is not whether the decision conflicts with parts of the planning scheme but whether it conflicts with the planning scheme. The planning scheme must be construed as a whole.

I accept that the parts of the scheme relied upon above do combine to create a prima facie conflict with the decision. Council appears to accept that too.[42] It is clause 4.10.5(3)(p) which I find most persuasive in finding the prima facie conflict.
[42]Council submissions [59]

Council submitted in writing:

Whilst the preliminary approval for a material change of use so as to permit a Major Neighbourhood Centre instead of a Local Neighbourhood Centre may, prima facie, appear to be an inconsistent use for the purposes of a LC2 Sub Area, such inconsistency only constitutes a potential internal conflict within the planning scheme itself. This potential internal conflict is resolved where significant increases in gross floor area is supported by demonstrated growth in terms of population or disposable income and a social and economic impact assessment justifies such an increase.

Council supported that submission[43] by reference to s 4.10.2(2)(d) of the planning scheme. That section provides, so far as is material for council’s submission:
[43]Orally at T2-29 and following and in its outline at [53] and following

4.10.2 Overall Outcomes for Local Retail and Commercial Zone
(2)The overall outcomes sought for the Local Retail and Commercial Zone are the following—
Land Use Mix and Centres Development Strategy
(d)Significant increases…of gross floor area in existing Local Retail and Commercial areas…is supported by—
(i) demonstrated growth in terms of population or disposable income; and
(ii) a social and economic impact assessment which justifies the increase in the range of activities or gross floor area of the operations.

The part of council’s land identified for the shopping centre is within an area of land in the Local Retail and Commercial zone (Sub Area LC2) in the planning scheme. Sub Area LC2 is a category of land in the Local Retail and Commercial zone.

Council argues that the report obtained from Mr Norling justifies an increase in the gross floor area and that his report is the key by which the overall strategy was achieved despite being prima facie inconsistent because of its presence within the LC2 sub area.[44]
[44]T2-30 l 45-57

Devine submitted in reply:

Clause 4.10.2(2)(d) deals with two situations:-
an increase in the range of activities or of gross floor area in “existing Local Retail and Commercial areas”; and
a proposal to establish a “new Local Retail and Commercial area”.
(emphasis added)
The first limb deals with a centre where there is existing gross floor area, because a retail development actually exists, and it is proposed to expand that centre. That is not the case here…

Council emphasised that s 4.10.2(2)(d) does not say significant increases in “existing gross floor area”. That assists Council. However clause (d)(ii) of the section refers to justifying an “increase in … gross floor area of the operations” rather than in the GFA of the proposed operations. That assists Devine.

Thus, Devine’s argument is that s 4.10.2(2)(d) permits a social and economic impact assessment to justify enlarging an existing shopping centre operation in an LC2 Sub Area to 4,000 m² GFA but does not permit a proposed shopping centre operation to be enlarged to 4,000 m² GFA.

I interpret the problematic s 4.10.2(2)(d) as permitting an increase in the GFA of a proposed operation if a social and economic impact assessment justifies the increase. The alternative interpretation would be discriminate between existing and proposed operations despite a social and economic impact assessment which justifies the increase. That discriminatory interpretation is not entirely impractical. It would still permit an applicant to argue that the conflict with the planning scheme which would arise from allowing its proposed operations to have a 4000 m² GFA in an LC2 sub area when a supporting social and economic impact study justified it would be a minor conflict because of that circumstance and that the supporting study justifying the approval was a ground for approval despite the conflict.

It is not submitted that the report by Mr Nothling is not a supporting social and economic impact study. There is an implied argument raised by Devine in a later issue (the second economic issue) that Mr Nothling’s study is not probative evidence to justify the increase in the GFA for council’s proposed centre.

On the basis of my interpretation of s 4.10.2(2)(d) of the planning scheme, that section materially qualifies the prima facie conflict which would be suggested by reference to the parts of the scheme upon which Devine relied. I find that Mr Norling’s report was a social and economic impact assessment which purported to justify the increase in the GFA of the proposed centre operations on council’s land in the existing Local Retail and Commercial Zone. Ms Plumbe regarded it as justifying the increase in GFA of the proposed centre operations.

The assessment manager’s decision was not in conflict with the planning scheme as it was a decision in reliance on the justifying study.

Traffic: Was there no evidence of traffic impact? Did Council fail to consider traffic impact on the local and broader road network?

The Amended MCU Application was subject to impact assessment, which is an assessment against all relevant provisions of the planning scheme,[45]among other things.
[45]SPA, s 314(2)(i)

Devine alleged that the Amended MCU Application “did not include, and was not accompanied by, any evidence or other material assessing the impact of the traffic generated by the proposed development on the local or broader road network”. Council did not deny that allegation but responded by alleging that Council “had such material before it in making its decision.”[46] Devine also alleged that when Council decided the Amended MCU Application it “had no evidence or other probative material before it for consideration which identified or assessed the impact of the traffic generated by the proposed development on the local or broader road network.” Council denied that.
[46]Notice of Amended Matters In Dispute par 11

The factual issue seems to concern the material upon which the decision was based rather than the material originally accompanying the Amended MCU Application. In particular the factual issue alleged is whether, when Council made its decision, it had any evidence or other probative material before it for consideration which identified or assessed the impact of the traffic generated by the proposed development on the local or broader road network. That factual issue is not the ultimate traffic issue. The ultimate traffic issue is that expressed in the declaration sought: “the development application for DA6252, including supporting material, did not include material concerning traffic impacts…which was essential to its proper consideration according to law.” A component of the ultimate issue involves an assessment of what is essential for a proper consideration at the stage of assessing an application for preliminary approval.

Council concluded there are two issues raised by Devine in relation to Council’s consideration of traffic impacts. One was the alleged failure to consider a relevant matter and the other was the making of a decision allegedly without evidence. It may be correct that both are raised. I will deal with both.

Devine opened with an argument that Council was obliged to consider the impact of an approval on the amenity of adjoining residential premises, that Council considered aspects of road capacity and safety devices but a) did not consider amenity properly understood concerning the appreciation of people of qualities of the environment, or b) if Council did consider amenity, the evidence it had on amenity was incapable of being probative of the issue and on either basis there was failure to comply with the obligation to consider amenity. There was objection by Council that the failure to consider amenity generally was not pleaded .[47] Devine did not apply to amend to include that issue. Devine is confined to a case that Council failed to consider traffic impact on the local and broader road network and economic impact.
[47]T1-21

Currently, Coldham Street carries about 300 vehicles per day (vpd), comprised almost entirely of traffic to and from residences in the street. The Amended MCU Application foreshadows a future when Coldham Street will link to a road network to the north. When the road link is complete, traffic volume will be approximately 3,000 vpd.

The road in Coldham Street ends at a stub on the southern boundary of the site. Coldham Street does not presently carry much traffic. Since as early as 1986 the “Coldham Street extension” to the north has been identified on plans.[48] Before the Amended MCU Application was made it has been part of the road network planning that Coldham Street would be linked with the road network to the north. The extension has been in Council’s contemplation for nearly 25 years. Consistently with that long term plan, Coldham Street is currently constructed to a collector street standard having wider carriageways to accommodate through traffic.[49]
[48]Para 22(b) of the affidavit of Alexander Prasser
[49]Affidavit of Alexander Prasser para 22(b)(ii)

Four properly made submissions were received in response to public notification of the Amended MCU Application. The submissions dealt with matters relating to the location of bus stops and traffic flow changes in Coldham Street and maintenance of the current character of the community.

Ms Plumbe was acting in the capacity as Team Coordinator – Development (Central Team) and was the delegated officer considering the Amended MCU Application. She was the effective assessment manager. She had before her the following material:

(a) An access and mobility plan dated 11 April 2011;

(b) DTMR Concurrence Agency Response which included conditions dated 24 May 2011;

(c) The public submissions considering public transport, access and mobility and potential traffic flow changes in Coldham Street;

(d) Council’s Engineering and Environment Branch Engineering report dated 10 August 2011.

On 22 September 2010 Mr Grant of Council’s Planning and Development Department referred the Amended MCU Application to Mr Prasser who was then the team leader of Council’s Traffic and Transport Section of the Engineering Service Department. Mr Prasser then had expertise in traffic planning, road design and road system management. Mr Prasser had also, from 2003 to 2008, assessed for Council the traffic infrastructure planning of major development applications. Mr Grant requested a review of the Amended MCU Application and advice as to whether additional information was required, and, if not, whether conditions were required.[50] Mr Prasser reviewed the Amended MCU Application and associated documents from a traffic perspective. He considered whether an information request should be made to require a traffic impact assessment report to be submitted. He considered what he regarded to be the relevant matters and advised his view that no further material was required to be submitted. In his opinion, a traffic impact assessment report was not then required. It was his view that Council’s transport network planning for the area provided Council with sufficient information to properly assess the traffic impacts without the need for a separate report. Council had previously undertaken extensive network road planning work in the area of the proposed development including the Coldham Street Extension. Mr Prasser formed the opinions that the proposed access for the development was generally consistent with Council’s transport network planning for the area and that the Council’s transport network planning generally provided sufficient capacity to cater for the potential traffic expected to be generated by the development. He was very familiar with the road network and Council’s transport network planning for the area. If a traffic consultant had prepared a traffic impact assessment report, the consultant would have collated material Council had and with which Mr Prasser was familiar. In Mr Prasser’s view, to require such a report to be submitted for this Amended MCU Application would have been unnecessary. His view is that the proper time to obtain a traffic impact assessment report for this application is at the later stage of future applications for development permits. He advised Mr Grant of conditions which Mr Prasser regarded as appropriate. Ms Plumbe was advised by Mr Prasser and Mr Grant and was aware of the expert opinion that a traffic report was not required “as part of the application process” and relied on the expertise and advice of the relevant officers.[51]
[50]Affidavit Prasser ex ANP-1 p1
[51]Affidavit Plumbe par 45.

One of the conditions of the approval of the Amended MCU Application was for the submission of a Local Area Traffic Management Plan, not then but in conjunction with the submission of any later related application. There was a condition for traffic calming to be included as part of that anticipated traffic management plan for the section of Coldham Street and the intersection of Coldham and Milford Streets. Ms Plumbe did not then approve a connection to Coldham Street. To some extent that is consistent with her attention having been turned to impacts on the residents of Coldham Street. In approving the Amended MCU Application, Ms Plumbe recognised that impacts resulting from any vehicle connection to Coldham Street would be considered when considering approval of subsequent applications for development permits. The propriety of that time for assessing further traffic impacts is consistent with the view of Mr Prasser.

Mr Camilleri and Mr Ovenden may hold a different view about when such a traffic impact assessment report is required. It is not necessary for me to decide if Mr Prasser’s opinion is incorrect. An opinion from Mr Prasser that it was unnecessary to seek a traffic impact assessment at the stage of an application for preliminary approval is probative evidence of that fact. A consequence of the postponement of the obtaining of a traffic impact assessment report is that it becomes more difficult to conclude that at the time Ms Plumbe decided the Amended MCU Application, further evidence was then “essential to its proper consideration according to law.”

Devine’s submission accepts:

that there is no statutory requirement that this assessment be based on any particular form of traffic impact “assessment” or “report”. Subject to administrative law supervision, it is a matter for the decision maker to select the form or type of evidence on which it relies, and different views as to the sufficiency of that evidence, without more, do not provide grounds for judicial intervention.

Council was required to have regard to submissions from the public in its assessment. Mr Grant deposed that “the matters raised in the submissions have been appropriately addressed through amendments to the plan of development and conditions”. I am satisfied that Council had adequate regard to the submissions insofar as they raised traffic concerns.

Devine submitted:

The evidence before the Court reveals that:-
The material which the Council had before it or available to it relating to the Coldham Street extension consisted of:-
Page 17 of the exhibit to Mr Prasser’s affidavit, which appears to show a proposed extension of Coldham Street “drawn on” to a Registered Survey plan as part of a “(Draft) Concept Plan” for some unknown development that was never proceeded with;
Page 18 of Mr Prasser’s exhibit, which he describes as “Plan showing Coldham Street extension” but which is submitted to be in fact indecipherable on its face;
Page 19 of Mr Prasser’s exhibit, which he describes in the same way, and which appears on its face to be a “proposed” subdivision layout plan for a subdivision which was never proceeded with.
Page 16 is not a statutory document, and in any event is again nothing more than a Council sketch showing where the extension might go.
That is where Mr Prasser’s evidence stops. Pages 7 and 10 to 15 of his exhibit appear to relate to a proposed intersection of Redbank Plans Road and Collingwood Road. That may be premised on a future extension sough through the subject land to Coldham Street, but Coldham Street does not even appear on those plans.

I reject the implication that the documents were devoid of information useful for those persons involved with the assessment who read them. I reject the submission that the three documents were the only evidence related to traffic impacts essential to its proper consideration on which the assessment manager proceeded. Ms Plumbe had the benefit of the opinion of the experienced Mr Prasser. Broken into elements, that opinion was that a) no further information was then required, b) that certain traffic conditions were then required and what those conditions were, c) that a traffic impact assessment report would be appropriate when development permits were sought and d) the matters raised in that traffic impact assessment report should then be considered with a view to determining what further conditions relating to traffic would then be appropriate.

The common law “no evidence” rule has been recently considered in two cases in the Federal Court.

In Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation[52] per Flick J:
[52][2011] FCA 370

[92] Subject to reservation, it may be accepted as a general proposition that an administrative decision should be based upon material which is relevant to the decision to be made and logically probative: eg Australian Broadcasting v Bond (1990) 170 CLR 321 at 367 per Deane J; GTE (Aust) Pty Ltd v Brown (1986) 14 FCR 309 at 337 per Burchett J; Sagar v O’Sullivan [2011 FCA 182] at [60] per Tracey J. The common law thus recognised that a decision-maker must base his decision “upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined”: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488 per Diplock LJ. And the Administrative Decisions (Judical Review) Act (Cth) in ss 5(1)(h) and 5(3) now expressly recognises a “no evidence” ground of review. But caution must be exercised “in considering administrative decisions impugned on the basis of ‘no evidence’ submissions and/or unreasonableness so as not to cross over into the prohibited area of merits review”: Hendy v Repatriation Commission [2002] FCA 602 at [58][2002] FCA 602; 72 ALD 112 at 125 per Madgwick J. For subsequent proceedings not affecting this observation, see Repatriation Commission v Hendy [2002] FCAFC 424, 76 ALD 47.
[93] Differences between the ground of “no evidence” at common law (and s 39B of the Judiciary Act) and under the Judicial Review Act initially received no attention in the submissions advanced on behalf of the Applicant. But the differences cannot be ignored: Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707, 148 FCR 446 Weinberg J there relevantly observed:
[574] In dealing with the no evidence ground, it must first be noted that there are differences, in respect of findings of fact, between judicial review under the common law, and review under the ADJR Act.

[575] Under s 39B of the Judiciary Act (which reflects the common law), the “no evidence” ground requires that there be simply no evidence or other material to justify the findings of fact made. Aronson suggests, at p 239, that “no evidence” means “not a skerrick of evidence”. If there is some evidence, no matter how unconvincing, and no matter how overwhelming the evidence to the contrary may be, the traditional approach is to treat the complaint as factual, and not legal. According to Mason CJ in [Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356]:

So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

[576] The position under the ADJR Act is more complex ... Aronson suggests that it provides for a more relaxed version of the no evidence ground. Section 5(1)(h) provides for review on the ground "that there was no evidence or other material to justify the making of the decision".

Nor was there any examination of the application of any principle as to “no evidence” where the decision under challenge is a decision to issue a notice to show cause as opposed to a decision subsequent in any future decision-making process.

In Shop, Distributive and Allied Employees Association v National Retail Association (No. 2[53] Tracey J stated

“The “no evidence” ground is available where legislation imposes a pre-condition to the exercise of jurisdiction and it is alleged that there was no evidence before the decision-maker which justified a finding that the pre-condition existed. The necessary evidence could be either direct or found in material which permitted the decision-maker reasonably to infer that the condition existed: see Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at 21 (per Gummow and Hayne JJ). The ground will not be made out unless it is established that there was “no evidence, or other material, to justify the findings of fact made”: see Australian Retailers Association v Reserve Bank of Australia [2005] FCA 1707; (2005) 148 FCR 446 at 587 (per Weinberg J). The point is put more bluntly in Aronson, Dyer and Groves, “Judicial Review of Administrative Action” (Fourth Edition) at 259 where the learned authors say that the “no evidence” ground “cuts out when even a skerrick of evidence appears.”

[53][2012] FCA 480

I am not satisfied that there was no evidence related to traffic impacts essential to its proper consideration at the stage of granting preliminary approval.

Secondly, on the issue of failure to consider a relevant consideration: Devine opened with an argument that Council was obliged to consider the impact of an approval on the amenity of adjoining residential premises, that the approval was conditional upon a new road connection which will increase traffic from 300 to 3,000 vehicles daily through Coldham Street, that Council considered aspects of road capacity and safety devices but a) did not consider amenity properly understood concerning the appreciation of people of qualities of the environment, or b) if Council did consider amenity, the evidence it had on amenity was incapable of being probative of the issue and on either basis there was failure to comply with the obligation to consider amenity and that failure cannot be excused under SPA s 440 or, alternatively, if it may be excused, it should not be. There was objection by Council that the failure to consider amenity generally was not pleaded.[54] Devine did not apply to amend to include that issue. Devine’s case is the narrower one that Council failed to consider traffic impact on the local and broader road network.
[54]T1-21.

By its submissions in reply, Devine submitted those impacts inherently relate to transport efficiency, convenient access to and use of roads by those who use Coldham Street and other roads as they presently exist, and safety on those roads (including safety for pedestrians and cyclists), all in the context of a ten-fold increase in traffic using Coldham Street from 300 vpd to 3000 vpd.

Devine submitted in reply that the following are the provisions of the planning scheme relevant to the traffic issue pleaded, and implied that each was a relevant matter to consider when the assessment manager assessed the application:-

1. clause 3.2(1)(j) which states a performance indicator, relevant to achieving that outcome, that development has been designed and located to minimise impacts on adjoining residential areas;

2. clause 4.5.3(6)(a) and (d) which state specific outcomes for development in the Residential Low Density Zone that uses and works ensure the a safe and efficient operation of the road network and avoid significant adverse effects from the use of the road network;

3. clause 4.10.2(2)(e) which states an overall outcome for development in the Local Retail and Commercial Zone that conflict between local and through traffic and between pedestrians cyclists and vehicles is minimised;

4. clause 4.17.3(6)(b) which states a specific outcome for development in the Recreation Zone that traffic impacts of recreation facility operation on nearby residential areas are minimised;

5. clause 12.7.3(2)(a)(i) and (vi) which state an overall outcome which applies to development in the Local Retail and Commercial Zone (disregarding any scheme variations) that commercial uses and works:-

(a) ...

(b) provide for convenient, safe and efficient movement of vehicles and pedestrians within the site as well as to and from the site.

In that context Devine submitted:

What is required is an assessment of impacts, not merely implications. The process is impact assessment, not “implication assessment”.

The submission seems to be akin to a submission that Council failed to take into account relevant considerations arising in those provisions.

Council’s decision to postpone the requirement for a traffic impact assessment has the consequence that further and more detailed consideration can be given to any further relevant matters later, at the time of subsequent applications for development permits. If a relevant matter for consideration had been identified by Devine and shown to have not been considered by Ms Plumbe, the issue would have arisen as to whether Ms Plumbe was bound to consider it at the time of granting preliminary approval or whether it would suffice to consider it when the traffic impact assessment report was later obtained after an application is made for a development permit.

If the validity of Ms Plumbe’s decision is challenged on the basis of a failure by her to take a relevant consideration into account, such a challenge equates with s. 20(2)(e) when read with s. 23(b) of the Judicial Review Act 1991. As stated in Judicial Review of Administrative Action Fourth Edition, Aronson, Dyer and Groves at page 282:

The High Court has repeatedly stressed that the relevancy grounds apply only where the decision-maker was bound to take the omitted factor into account, or forbidden to consider the included factor. According to Dean J in Sean Investments Pty Ltd v MacKellar, the decision-maker is not to be criticised for failing to consider everything which the affected party has chosen to include in an ‘exhaustive list of all the matters which the decision-maker might conceivably regard as relevant’. His Honour said that it is largely for the decision-maker to decide what factors to pursue. Given the principal judgment in Minister for Aboriginal Affairs v Peko-Wallsend Ltd Mason J endorsed that approach:
‘The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision…. The statement of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corp. that a decision-maker must take into account those matters which he ‘ought to have regard to’ should not be understood in any difference sense in view of his Lordship statement on the following page that a person entrusted with a discretion ‘must call his own attention to the matters which he is bound to consider’.

I am not satisfied that Council failed to take into account the impact of the traffic generated by the proposed development on the local or broader road network or any consideration it was bound to consider before granting the preliminary approval.

First Economic Impact Issues: Was there no probative evidence of economic impact? Would no reasonable assessment manager have accepted the evidence?

Council does not dispute that it was required to assess and consider economic impacts of the Amended MCU Application.

Devine relies on the common law “no evidence” rule in relation to economic impact. In this respect paragraph 2(b)(i) of the amended originating application alleges and Devine seeks a declaration that the decision was “made in circumstances where there was no evidence before the assessment manager of matters which were essential to its proper consideration”. Paragraph 2(b)(ii) of the amended originating application further alleges and Devine seeks a declaration that the decision was “so unreasonable that no reasonable assessment manager could have made it”. The grounds were particularised in paragraph 38 of the amended originating application which alleged: that Mr Norling’s economic assessment was patently materially flawed because it was based upon an identified catchment area applicable only to a Local Neighbourhood Centre and not for a Major Neighbourhood Centre; and in that it was false because it stated that no application had been made for approval to develop a Major Neighbourhood Centre.

I accept Mr Norling’s evidence that he considered an appropriate catchment area when considering the economic impact of approval of the Major Neighbourhood centre in the Amended MCU Application. I reject the allegation that the report was patently materially flawed for the catchment area relied upon and the allegation that the flaw was patent.

Mr Norling’s second report was prepared in January 2011 and the application for the Major Neighbourhood Centre at School Road (the Devine project) was not lodged with Council until about April 2011. Therefore, Mr Norling’s report was factually correct at the date it was prepared for reporting that no application had then been made relating to Mountainview. Devine submitted that “the Council knew that an application for a development permit for the proposed Major Neighbourhood Centre” on Devine’s land had been made and substantially progressed. In fact the application was for only a preliminary approval. I accept that Council knew that Devine had made an application for preliminary approval. I accept Council’s submissions that “Ms Plumbe had … her own knowledge of the status of the Devine preliminary approval application…At the time of the decision the Devine preliminary approval application was still in the information and referral stages of IDAS”.

I reject the specific allegations made at paragraph 38 of the amended originating application. Notwithstanding that the grounds relied upon were particularised in paragraph 38(b), Devine in submissions made more general allegations relating to absence of economic impact evidence.

For the Original MCU Application, the Council had the benefit of an economic assessment by Mr Norling done in August 2010.[55]It concluded that a centre in the order of 2,000 m²of retail floor space was supportable. An area of 2,000 m² implies a space too small to support a full line supermarket. Mr Norling’s conclusion did note however that the site was in a high residential growth area in which the Catchment Area population was expected to grow from just under 4,000 in June 2010 to just over 7,000 persons by 2021 and that theoretically, a population of 7,000 could support a full line supermarket. It nevertheless recommended “that the proposed centre remain at a lower order level due to the current, approved and planned centres in the Collingwood Park and Redbank Plains area”.
[55]Affidavit of M Grant, commencing at Exhibit page 277

In January 2011, five months after his first report, Mr Norling was asked to prepare a new report to assess the need for a larger centre of 4000 m² and to examine the level of impacts on the existing and planned network of centres upon development of such a centre.

Devine submitted:

Much of the text in the two reports is word for word identical. Searching for new facts not identified in the first report, one can find only the following of apparent relevance to the radical change in conclusions:-
an assertion that a Major Neighbourhood Centre on the subject land would provide greater levels of choice and price competition (though preferably not via another Woolworths)[56];
a “downplaying” of the proposed Major Neighbourhood Centre proposal by the applicant on its School Road site, which had been taken to be a part of the existing and proposed network of centres in the first report without qualification, but was now identified as a proposal for which “an application has not yet been made”[57].

[56]Affidavit of M Grant, Exhibit page 533; see also pp 540 and 542 referring to “another supermarket operation”, being an apparent reference to a competitor to Woolworths

[57]Ibid, Exhibit page 545.

Nevertheless, Mr Norling’s second expert opinion, given in response to a different question, was different from his first.

His second report, of January 2011 concluded[58]that whilst the subject site was earmarked for the development of a Local Neighbourhood centre, the Catchment Area population reaching 7,000 by 2021:

is adequate to support a full line supermarket. The inclusion of a supermarket at the subject site would increase levels of convenience to residents and could introduce a new supermarket operator to the Woolworths dominated area, increasing levels of choice and price competition…the opening of such a supermarket would result in limited negative economic impacts upon the surrounding competitive network and would not inhibit the function or vitality of the competing retail centres. In considering planned centres identified within the Ipswich planning scheme, development of the proposal may delay the development of the intended centre for south of the subject site within Devine’s Mountview Estate until the population in this southern area is large enough to support an additional centre and the further expansion of Redbank Plains Centre. There is significant residential designated land to support another Major Neighbourhood Centre in this corridor also. It is Norling Consulting’s opinion that the proposed development at the subject site would provide a considerable overall net community benefit.

[58]Affidavit of M Grant, commencing at Exhibit page 547

Devine submitted:

To the extent that the Council’s changed proposal was supported from an economic impact perspective on the basis that there would be an operator other than Woolworths on the subject land:- there was no evidence before the Council; and there is no evidence before the Court, that Coles, Aldi or another competitor to Woolworths will operate the full line supermarket on the subject land…
To the extent that the Council’s proposal was supported from an economic impact perspective on the basis that the applicant’s proposal was speculative because no application had yet been made, that assertion was false in fact by the time the HRP change report dated 24 May 2011 was delivered, and more so by the time the decision was made, because the relevant application was made to the Council on 15 April 2011, and well advanced by 13 September 2011.

Devine’s submission is correct that Devine’s application was made by 15 April 2011 and had advanced by 13 September 2011. At the time of the decision the Devine’s application for preliminary approval was in the information and referral stages of IDAS. There was no application for a development permit lodged with Council for a material change of use on Devine’s School Road site. When Devine’s application for preliminary approval was granted on 1 February 2012, the time for it to act before the approval would lapse was, 10 years, as was council’s.[59] Within those ten years one would expect each holder of preliminary approval to ask for a development permit and to start developing a shopping centre. In council’s case it would be up to 4,000 m² GFA and in Devine’s it would be up to 6,000 m² GFA.
[59]T2-40 l 50

Devine submitted:

The Council had no factual basis before it upon which a properly informed assessment manager could have:- formed the view that the initial advice that the economic impacts and related considerations meant that a centre of not more than 2,000 m² GFA could be supported was wrong; or formed the view that the economic impacts of a 4,000 m² GFA centre were acceptable or could be acceptably mitigated.
At most, the Council had two diametrically opposed conclusions on the question:-
given by the same person; and based on substantially the same facts; and to the extent that there was some limited factual basis for the change in view, involving a difference based on facts which did not exist or were wrong.
Making a choice between the two competing conclusions (by the same expert) could have been nothing more than guesswork.
The issue of economic impact was clearly one which could have materially affected the decision outcome. The assessment and decision had to be based on more than tossing a coin in relation to this issue. Given the state of the evidence, the Council’s purported consideration of the issue:- was one undertaken without having any probative evidence on the issue; and/or involved no proper, genuine and realistic consideration of the issue; and/or involved making a decision on the issue which was not rational or logical because it cannot be supported any process of reasoning which could be adopted by a reasonable mind, properly understanding the assessment manager’s role and powers, as well as the lack of probative evidence.

Mr Norling explained in cross-examination some matters he considered before making the conclusion in his subsequent report:[60]

I was expecting that because we've got a larger centre with a larger turnover, I was expecting that we would have larger impacts in a percentage term and that might or might not fall within the acceptable range. I was also conscious that there was likely to be a timing issue, a timing issue in the sense that if this development was to be approved and developed within a short period of time then that might cause a major supermarket tenant to perhaps not go…to one of the other centre opportunities as quickly as they might otherwise have gone.
So I was concerned in two areas. One is to the magnitude of the impact on existing centres and, two, the timing of different centres but I needed to undertake the analysis before I finetuned what that impact or how that impact would actually look like.

[60]T1-46 l 21-37

The reports were not diametrically opposed. If Mr Norling’s later conclusion had been inconsistent with his former conclusion, it does not follow that Ms Plumbe should have rejected it. But it is not obvious that Mr Norling’s later conclusion is inconsistent with his former conclusion. Objectively compared, that is without explanation by Mr Norling, the two reports can be interpreted as consistent with each other. It requires the reader to accept that at the time of his first report Mr Norling would have considered that a centre with up to 4,000 m² GFA would, like a centre with a centre with up to 2,000 m² GFA, be “at a lower order level” because it was less than a centre with up to 6,000 m² GFA.

Mr Norling’s concluding opinion in his second report was a factual basis upon which the assessment manager could properly form the view that the economic impacts of a centre with up to 4,000 m² GFA on Council’s site were acceptable and desirable.

Ms Plumbe gave consideration to economic impacts in making her decision to approve the Amended MCU Application. Ms Plumbe had before her the recommendation report prepared by Mr Grant, Mr Norling’s second report, her own knowledge of the status of Devine’s application for preliminary approval and the relevant planning instruments.

To succeed on the Wednesbury unreasonableness ground it is necessary to show that the decision was so unreasonable that no reasonable decision maker could have made it. To prove a Wednesbury case requires something overwhelming,[61] or devoid of any plausible justification.[62] Courts are cautious not to let this ground of review turn a hearing into a merits review.[63]
[61]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 at 683
[62]Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
[63]Minister for Aboriginal Affairs & Anor v Peko-Wallsend Ltd & Ors (1986) 66 ALR 29 at 310

I reject what Devine classified as its third issue. Because it seemed to expand beyond the pleading I should be more precise. I reject the submissions that:

Given the state of the evidence, the Council’s purported consideration of the issue:-
a) was one undertaken without having any probative evidence on the issue; and/or
b) involved no proper, genuine and realistic consideration of the issue; and/or
c) involved making a decision on the issue which was not rational or logical because it cannot be supported any process of reasoning which could be adopted by a reasonable mind, properly understanding the assessment manager’s role and powers, as well as the lack of probative evidence.

Second Economic Impact Issue

Was there no probative evidence about the impact on the viability of the centre proposed for Devine’s land? Would no reasonable assessment manager have granted the approval having regard to the evidence?

A significant premise for Devine’s next argument is a component of Mr Norling’s conclusion in his second report to Council of January 2011. In particular, Mr Norling reported:

In considering planned centres identified within the Ipswich planning scheme, development of the proposal may delay the development of the intended centre for south of the subject site within Devine’s Mountview Estate until the population in this southern area is large enough to support an additional centre and the further expansion of Redbank Plains Centre.

For the LC2 Sub Area where Council’s land is and where it sought approval for a new neighbourhood shopping centre to 4,000 m² GFA, the planning scheme provides:-

(a) A shopping centre, if the use exceeds 2,000 m² GFA constitutes undesirable development which is unlikely to be approved;[64]
[64]Planning Scheme s 4.10.5(3)(p)

(b) A shopping centre, if the use be more than 2,000 m² GFA is an inconsistent use;[65]
[65]Planning Scheme Table 4.10.1, assessment levels for “business use” and “shopping centre” in the Local Retail and Commercial Zone

(c) It is a Specific Outcome that Local Neighbourhood Shopping range in size from a single shop to small clusters of shops less than 2,000 m² GFA;[66]

(d) It is a Specific Outcome that Local Neighbourhood Shopping serve a population of less than 5,000 persons.[67]

[66]Planning Scheme s 4.10.4(2)(e)(ii)

[67]Planning Scheme s 4.10.4(2)(e)(iii)

Apart from those matters specific to the LC2 Sub Area: the planning scheme contained and promoted a hierarchy of centres; Map 3 in Schedule 7 identified planned locations for both Local Neighbourhood Centres and Major Neighbourhood Centres and the map including Devine’s site at School Road, as a proposed Major Neighbourhood Centre.

But the provision of the planning scheme which Devine submits to be at the heart of the issue is the Specific Outcome for Urban Areas as a whole that Neighbourhood Centres and local shopping areas be “sized so as not to compromise the viability of higher order centres or other existing or planned neighbourhood centres.”[68]
[68]Planning Scheme s 4.3.3(1)(b)(vi)

The term “viability” is not defined in the planning scheme. Devine relied upon the Macquarie dictionary which defines it relevantly as “practicable; workable”. Council submitted that it is “a capacity to operate or to be sustained”.

Devine submits that if, at the date when Council considered Council’s application (which I take to mean 14 September 2011):

there is another centre which is recognised in the Council’s planning and proposed to be implemented (more or less) contemporaneously with the proposal under consideration, the specific outcome is contravened if approval of the proposal before the Council will have the result that the other proposal cannot be implemented in accordance with the temporal intent of those proposing it (and the planning intent of the Council).
If, as a result of approval of the proposal under consideration, there is an economic impact which prevents the alternate proposal from proceeding at the time intended by its proposer (and assuming that there is nothing in the planning scheme which indicates that support for the alternate proposal is a long term or deferred planning intent rather than a current one), approval of the proposal under consideration necessarily compromises the “viability” of the other proposal.

The “temporal intent of those proposing” development of a shopping centre on Devine’s land was not proved. No date within the ten years of 1 February 2012 was established as the date when Devine proposed to establish or commence development of its shopping centre, or whether it intended to complete the development within ten years. It was not suggested that Council had been provided with Devine’s development timetable at any material date. Devine did not prove that the economic impact from Council’s granting preliminary approval for development of Council’s land has caused Devine to defer or forgo development at Mountview, or that it brought that to Council’s attention as a likely result. This was not a merits review and so it was not essential that Devine prove these matters. The issue is not the viability of Devine’s plan to develop a shopping centre. Rather it is the viability of the planned centre.

There is an element of Devine’s submission which requires closer analysis. I reject the submission that:

the specific outcome is contravened if approval of the proposal before the Council will have the result that the other proposal cannot be implemented in accordance with the temporal intent of those proposing it

If that is a complex way to submit that proof that a developer will delay a development is necessarily proof that the proposed centre’s viability is compromised, I reject it. That is only one possibility.

Mr Norling concluded expressly that if Council proceeded to develop a shopping centre on its land it “may delay” the development of a centre to 6,000 m² GFA on Devine’s land. The opinion could have been more informative. It was not an opinion that the centre once constructed would have its viability compromised. Possible inferences include:

that the centre would not be viable upon completion if completed early;

that the centre would be viable upon completion if completed early but that the development would be less profitable for Devine as developer;

that the centre would be less viable if completed early, but viable nonetheless.

It is a reasonable hypothesis that an entity which carries on business as a land developer may regard the Mountview land as an opportunity for development as a shopping centre with a view to sale for market value upon completion and that market value may be related to some multiple of its projected annual income. Such a developer might not have in mind to carry on the business of centre landlord. It may be that its sole view to profit is from development and sale. On that hypothesis, a decision to delay development may be made on the basis that the market price of a new centre in the short term is less attractive than a higher market price for a new centre in the long term. The decision may not be based upon the viability of the centre. The planning scheme’s emphasis is upon compromised viability of a centre, not compromised profitability of a centre or compromised market value of a centre.

It was not put to Mr Norling during the hearing that his affidavit evidence was incorrect that

The proposed development would result in limited negative economic impacts upon the surrounding competitive network and would not inhibit the function or vitality of the competing retail centres, but may delay the development of the intended centre for south of the subject site with Devine's Mountainview estate

I do not accept Devine’s submission that it would necessarily have resulted in an improper swearing of an issue or an improper opinion on the law if Mr Norling had been cross-examined about such matters. Devine was at liberty to cross-examine about the viability of the planned centre on Devine’s land. As this is not a merits review, the important issue is whether the evidence before Ms Plumbe was a skerrick of probative evidence that the viability of the planned centre on the Devine land was not compromised. Cross-examination about viability of a centre at Mountview may or may not have related to that issue. But there is no evidence by which this court can assess whether the viability of Devine’s centre is compromised. That absence of evidence is not relevant to the issue of the propriety of Ms Plumbe’s decision making process. It seems to be a matter relevant to the issue of Council’s application to be excused under SPA s 440, if council made an error, that Devine does not prove that the centre’s viability is compromised.

Devine’s submission is that council’s decision to give preliminary approval for a shopping centre development of up to 4,000 m² GFA instead of up to 2,000 m² GFA was “to compromise the viability of …(the) planned neighbourhood centre (on Devine’s land)…”. It is not obvious from Mr Norling’s opinion that this is correct.

Further, Mr Norling’s advice referred to the possibility of delay in Devine’s centre development. He did not refer to a probability of delay.

Devine did not submit that evidence of the possibility of delay in its development was evidence of compromise to the viability of its planned centre. It submitted “…indefinite deferral of a centre which would otherwise be ready to proceed immediately compromises its viability…”[69]That premise differs from any premise in Mr Norling’s opinion. Devine’s submission treats a possible delay with Devine’s development as a definite delay and an immediate delay. By its submission Devine essentially accelerates the date for commencing development from some unspecified date between 2012 and 2022 to a date in 2012.
[69]Reply submissions [73]

Devine conceded that Council had evidence that Council’s decision may not compromise Devine’s development.[70]A concession more consistent with the evidence would have been that Council’s decision may not delay Devine’s development. From Ms Plumbe’s perspective as a reader of Mr Norling’s reports, Devine’s timetable may have been unaffected by her decision. Devine argued that evidence that a decision may delay Devine’s development, without evidence that it will not delay Devine’s development, means there is no probative evidence that it will not compromise the viability of Devine’s development. It was put differently, but that seems to be the effect of it.[71]Courts are accustomed to drawing inferences from uncertain evidence. The fact that an approval may delay Devine is not evidence that it will delay the development and is not evidence that the viability of the planned centre is compromised. Council put a slightly different argument.
[70]Reply submissions [73](f) and [75](b)(ii)
[71]Reply submissions [75](b)

Council argued that viability is capacity to operate or be sustained. I will accept that for the purpose of analysis of Council’s next argument. Council put an argument which seems to me to be based on an interpretation of Mr Norling’s evidence which is least favoured Council, that is, on the premise that Mr Norling’s advice was that a decision to approve Council’s application had the consequence that a centre on Devine’s land would not be viable when it would have been constructed and for that reason Devine would not construct it or would delay construction until a date when the centre would have the capacity to operate or be sustained. Council submitted that a decision which delays Devine’s development, delays the centre’s capacity to operate or be sustained but does not compromise the centre’s capacity to operate or be sustained. If that factual premise was the only one available on reading Mr Norling’s advice, I would regard council’s decision as one which compromised the viability of a planned centre. The Council does not need to rely on that submission as Mr Norling’s opinion about a possible delayed start by Devine did not establish that premise. It established that the decision may delay the development of the centre at Mountview.

Devine submitted, in effect, that there was not a skerrick of probative evidence upon which to draw the conclusion that Council’s decision would not compromise the viability of Devine’s centre.[72]I reject that. I interpret Mr Norling’s opinion as probative evidence concerning the possibility of a delay to Devine’s development and not necessarily as directly impeaching the viability of the centre. It was at the least some evidence from which it was reasonable to infer that whenever Devine elected to start, when construction was complete and the centre open, it would be a viable centre.
[72]Reply submissions [73](e) and [72]

I am not satisfied that Ms Plumbe’s decision was so unreasonable that no reasonable assessment manager could have made it or that there was no probative evidence before Ms Plumbe of matters which were essential to the proper consideration of the second economic issue.

Issue 5: The application by Council was changed. Was it only a “minor change” as Council contends?

The Amended MCU Application included a town planning report, an amended Plan of Development, an economic needs assessment report and an access and mobility plan.[73]
[73]Para 18 of the affidavit of Mitchell Grant

The Amended MCU Application sought preliminary approval. An approval of that type can be sought for a development that is conceptual in nature and does not descend to the detail of a particular proposal. As originally lodged the application sought approval for a number of uses on the site of which the commercial use was one component. None of these uses for which approval was sought changed. Both the Original MCU Application and the Amended MCU Application did not seek approval for any particular built form but rather sought approval for indicative precincts and allowable densities. Development permits will need to be obtained to allow any development to proceed on the site.

Part of the Amended MCU Application refers to a proposed neighbourhood centre of up to 4000 m² GFA. Under the planning scheme that use is defined as “shopping centre”. The “use” for which approval was sought for the commercial component of the application, as originally filed and in the Amended MCU Application was “shopping centre”. There was no change to the use sought.

The change was to the future triggers for determining whether an application is code or impact assessable; that is the trigger for impact assessment of the proposed neighbourhood centre changed from a GFA of above 2,000 m² to a GFA of above 4,000 m². The preliminary approval application was always impact assessable, the highest form of assessment.

The assessment manager was fully aware of these matters and the changes sought when she considered the s. 350 application.[74] In relation to the change in level of assessment triggers, the following sets out Ms Plumbe’s[75] understanding of the change:
[74]Para 18 of the affidavit of Natalie Plumbe
[75]Ibid

(g) The subject site is predominately zoned for Residential Low Density uses and also has a Local Retail and Commercial (LC2) zoning over a small part of the site. The LC2 sub-area (Local Neighbourhood Shopping and Other Commercial Lands) under the Ipswich Planning Scheme is intended to provide for dispersed shopping and commercial activities. The Ipswich Planning Scheme provides for this zone to accommodate a range of these activities from a single retail or commercial outlet to small neighbourhood centres which are less than 2000m² GFA and generally serve a population of less than 5,000 persons. The Plan of Development for the application allowed for a Business Use, being a shop or bulky goods sales or a Shopping Centre of up to 2,000m² GFA to be assessed by a code assessable application.
(h) The Plan of Development accompanying the Change Application allowed for a Business Use being a shop or bulky goods sales or a Shopping Centre of up to 4,000m² to be assessed by a code assessable application. The change was supported by a further Needs analysis by Norling Consulting.
(i) The change in the code and impact level of assessment triggers set out in paragraph (h) did not include the introduction of any new uses.
(j) The Ipswich Planning Scheme does not identify either a Local Neighbourhood Centre or a Major Neighbourhood Centre in its use definitions. Under the Ipswich Planning Scheme both of those are classed as “shopping centre”. Rather, Part 4.10.2(2) and (1) of the Ipswich Planning Scheme, respectively, describes:
(i) A Local Neighbourhood Centre as ranging from a single retail or commercial outlet to small neighbourhood centres which are less than 2,000m² in GFA and generally serving a population of less than 5,000 persons.
(ii) Major Neighbourhood Centres as the main nodes for the provision of convenience-type shopping facilities intended to provide for retail/commercial space in the range of 2,000 – 6,000m² GFA and service a catchment with a population range of 5,000 – 15,000 persons.

(k) Both the Local Neighbourhood Centre and the Major Neighbourhood Centre designation are intended for convenience shopping.

After a full consideration of the relevant material and Guideline 06/09 the assessment manager decided to accept the proposed change as a minor change having regard to its definition in s.350 of SPA.[76] In relation to the shopping centre precinct the Amended MCU Application did not change any specific uses for which approval was sought but rather the assessment triggers[77] for an allowable maximum. I accept that a failure to change the use is relevant. But consistency of use is not determinative of the issue of whether the development is substantially different.
[76]Para 22 and 23 of the affidavit of Natalie Plumbe
[77]Para 18(i) of the affidavit of Natalie Plumbe

The changes are summarised by council as removing the eastern portion of the subject site from the development area, changing code references, making a minor change to the geometry of the proposed internal roads to align with actual roads, changes in the assessment triggers for a proposed neighbourhood centre of up to 4000 m² GFA and a consequential minor change to the indicative shopping centre precinct footprint[78].
[78]Para 19 of the affidavit of Mitchell Grant and para 18 of the affidavit of Natalie Plumbe

Other changes are summarised by Devine. From Council’s evidence they are:

1. the indicative land area to be devoted to the Major Neighbourhood Centre, as compared to that originally devoted to the Local Neighbourhood Centre, increases from 6,000 m² to 9,000 m² ,[79] or possibly 10,500 m²[80];
[79]Affidavit of M Grant, Exhibit page 41 (First HRP report); Exhibit page 417 (second HRP report)
[80]Second Norling report page 3 para 15(d), referring to an additional 4,500 m²

2. the expected share of available retail expenditure in the relevant catchment to be captured by the Major Neighbourhood Centre, as compared to that anticipated for the Local Neighbourhood Centre, increases from 15% to 29%;[81]
[81]First Norling report, page 20; second Norling report, page 20

3. the expected turnover of the Major Neighbourhood Centre, as compared to that anticipated for the Local Neighbourhood Centre, increases from $9.4M to $15.1M;[82]

4. the “valuer added multipliers” generated by construction of the shopping centre increase from $4M for the Local Neighbourhood Centre to $8M for the Major Neighbourhood Centre;[83]

5. the full time employment opportunities of the Major Neighbourhood Centre, as compared to that anticipated for the Local Neighbourhood Centre, increase from 70 persons to 130 persons.[84]

[82]First Norling report, page 24; second Norling report, page 24

[83]First Norling report, page 25; second Norling report, page 26

[84]First Norling report, page 25; second Norling report, page 26

The traffic generation is doubled.[85]
[85]Affidavit of Mr Camilleri, Exhibited report, Table 3.1

The proposed shopping centre in the original application would have been code assessable, with or without any variations to the planning scheme. However, the larger shopping centre proposed in the Amended MCU Application would have been impact assessable but for the variation of the planning scheme. Devine relies on this as a ground of substantial difference. Council dismisses it arguing the definition of “development” in the SPA does not make any reference to levels of assessment[86] and that the test in s. 350 is whether there is “substantially different development”. Counsel submits the suggestion[87] that a difference in the planning scheme for the shopping centre aspect of the application between code and impact assessable development, where the whole application is impact assessable, lacks force. I accept that submission and disregard the level of assessment as a characteristic of substantial difference because the whole application was impact assessable.
[86]s. 7 of SPA
[87]Applicant’s submission para 79

Devine submits that the change gives the centre a dramatically different function and operation:-

(a) moving it up a distinct rung in the centres hierarchy; and

(b) resulting in it operating as a Major Neighbourhood Centre capturing 29% of the available catchment expenditure, including by being a place for the weekly or “chore” grocery trip, as compared to a Local Neighbourhood Centre capturing 15% of the available catchment expenditure, and not being a place for that weekly or chore trip.

I accept that because of the proposed shopping centre’s increased footprint, increased traffic generation, different economic impacts associated with its turnover, increased share of retail expenditure in the catchment, increased full time employees and change affecting the centres hierarchy together result in a substantially different portion of the development. I accept that it does not necessarily follow that the development as a whole is substantially different. In this instance I accept that the change resulted in a substantially different development.

By email dated 23 May 2011, the assessment manager confirmed that it agreed to accept the changes as a minor change.[88] There were no additional referral agencies. By letter dated 17 June 2011, each of the referral agencies was advised of the change.[89] The referral agencies did not change their previous responses.[90]
[88]Para 20 of the affidavit of Mitchell Grant
[89]Para 23 of the affidavit of Mitchell Grant
[90]Paras 28 to 31 of the affidavit of Mitchell Grant, para 20 of the affidavit of Natalie Plumbe and para 3 of the affidavit of Karen Trainor

A consequence of the acceptance of the Amended MCU Application as constituting a minor change was that s.353 of SPA was thought to be invoked and the IDAS process did not stop and s.355 was thought to have no operation. The Amended MCU Application continued through the IDAS process.

If the changes in the Amended MCU Application had been treated as not constituting a minor change at that time the only practical consequence would be that the Amended MCU Application would have reverted back to the start of the acknowledgement notice period and a new acknowledgement notice would have issued by the Council as assessment manager to itself as applicant. The acknowledgement notice would not have been provided to Devine.

The Amended MCU Application was re-referred to the referral agencies which did not have any additional comments. The public notification step took place in relation to the Amended MCU Application.

In these circumstances all persons including the public were able to consider and comment upon the Amended MCU Application.

It is not part of Devine’s case that Devine or other potential submitters failed to submit because of the misleading nature of the material that was publicly notified.[91]Council put Devine on notice that it is not part of Devine’s pleaded case that the published material was misleading[92] and Devine did not amend.
[91]T1-21 l 56 to T1-22 l 6 for the Council’s request for clarification and T1-22 l 30-57 for Devine’s response
[92]T1-21 l 30-32

Devine, like any member of the public, was at liberty to make a submission in relation to the Amended MCU Application. It did not do so.

To the extent it is alleged that the assessment manager failed to comply with s. 355(2) of the SPA, in that the change was not a minor change, council submits the non-compliance in these circumstances is technical in nature and may be remedied pursuant to s. 440. This is because the only consequence of non-compliance is a failure by the Council to give to itself an acknowledgment notice.

The classification of the change as minor is the only error I find. Devine accepts that on that premise:

if that was the only error in contention one might take the view it could simply be excused and move forward.[93]

[93]T1-17

As this is the only error, I find that noncompliance with the requirement to revert back to the start of the acknowledgement notice period and to provide a new acknowledgement notice by the Council as assessment manager to itself as applicant should be excused.

It becomes unnecessary to consider the arguments of law and fact about whether discretionary bases exist to excuse other hypothetical errors by Council.

IPSWICH PLANNING SCHEME 2006

PART 1 – INTRODUCTION

…

Division 3 – Strategic Framework

…

1.6 Urban Areas Strategy

…

(12)There is a focus for commercial activity within Ipswich directed towards development of the local government area as a ‘City of Centres’, with … a network of other major centres … and neighbourhood centres and local shopping/commercial areas as shown on Map 3 in Schedule 7.
…

PART 4 – URBAN AREAS

…

4.2.3 Uses Consistent or Inconsistent with the Outcomes Sought for a Zone
(1)In accordance with section … 4.10.5 … a defined use … that is inconsistent with the outcomes sought for a zone is noted in column 1 of tables … 4.10.1 ….
…

Division 3 – Overall and Specific Outcomes for the Urban Area as a whole

…

4.3.1 Compliance with the Urban Areas Code
Development that in the local government’s opinion, is consistent with the specific outcomes for the Urban Areas, as a whole in section 4.3.3 and the specific outcomes for the relevant zone, complies with the Urban Areas Code.

4.3.2 Overall Outcomes for Urban Areas
…

(2) The overall outcomes sought for the Urban Areas are the following—
...
Centres
(s) A network of centres is established … consisting of—
…
(ii)local elements conveniently located as foci for neighbourhood communities.

…
Zones
(y)The overall outcomes for each zone within the urban area as stated in the following sections—
…
(vii)Local Retail and Commercial Zone — section 4.10.2;
…

4.3.3 Specific Outcomes for the Urban Areas, as a whole

NOTE 4.3.3A

The specific outcomes which are sought to apply generally throughout the Urban Areas are set out below.

Centres

(1) Specific Outcomes
(a) A network of centres is established which—
...
(iii)supports and provides for the distribution of neighbourhood centres and local shopping areas, which mainly cater for convenience shopping and local services, ... generally within the locations depicted on Map 3 in Schedule 7.

(b)Neighbourhood Centres and local shopping areas are designed and located—
(i)to take advantage of major entry/exit points to residential communities with good visibility and access from major roads;
(ii)to be conveniently accessible to the catchment area they are intended to serve;
…
(vi)sized so as not to compromise the viability of higher order centres or other existing or planned neighbourhood centres.

…

Division 10 – Local Retail and Commercial Zone:
Assessment Criteria and Assessment Tables

…

4.10.2 Overall Outcomes for Local Retail and Commercial Zone
…
(2)The overall outcomes sought for the Local Retail and Commercial Zone are the following—
Land Use Mix and Centres Development Strategy
(a)Uses and works within the Local Retail and Commercial Zone support the development of—
(i)the Ipswich City Centre as a Key Centre for South East Queensland;
(ii)a network of Major Centres … ;
(iii)a network of neighbourhood centres ... as depicted in Map 3 in Schedule 7.

(b)The Local Retail and Commercial Zone primarily services the convenience shopping needs of localised population catchments, and provides limited access to comparison shopping, lower order professional offices and business, and financial or personal services.
…
(d)Significant increases in the range of activities or of gross floor area in existing Local Retail and Commercial areas, or proposals to establish new Local Retail and Commercial areas is supported by—
(i) demonstrated growth in terms of population or disposable income; and
(ii) a social and economic impact assessment which justifies the increase in the range of activities or gross floor area of the operations.

…

4.10.4    Effects of Development within Sub Areas
(1)         Sub Area LC1 – Major Neighbourhood Centres
…
Business/Land use Mix
(d)        Specific Outcomes
…
(ii)        New major neighbourhood centres—
…
(C)are conveniently accessible and central, to a catchment with a population range of 5,000-15,000 persons;
…
(F)are sized and located so as not to compromise the viability of higher order centres or other existing or planned neighbourhood centres;
…

(2)Sub Area LC2 – Local Neighbourhood Shopping and Other Commercial Lands

NOTE 4.10.4C

…

(2) These areas range from a single retail or commercial outlet to small neighbourhood centres which are less than 2000m² in gross floor area.

…

...
Business/Land Use Mix
(e)Specific Outcomes
Local Neighbourhood Shopping and Other Commercial Lands—
…

(ii)range in size from a single shop or commercial outlet to small clusters of shops less than 2000m² in gross floor area;
(iii)generally serve a population of less than 5000 persons;
…

New Local Neighbourhood Shopping and Other Commercial Lands
(f) Specific Outcomes
New Local Neighbourhood Shopping and Other Commercial Lands should—
…
(ii)be conveniently and safely accessible by car, walking and bicycle to a definable residential community of 1000-1500 households;
…

4.10.5 Consistent and Inconsistent Uses, Use Classes and other Development
Specific Outcomes
…
(2)The following uses, use classes and other development categories are consistent with the outcomes sought for the Local Retail and Commercial zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds-
.…
(p)shopping centre, if the use is less than 6000m² of gross floor area in the LC1 Sub Area or 2000m² of gross floor area in the LC2 Sub Area;
…

(3)The following uses … are inconsistent with the outcomes sought and are not located within the Local Retail and Commercial Zone; and constitute undesirable development which is unlikely to be approved—
…
(d)business use, if a shop … greater than 2000m² of gross floor area in the LC2 Sub Area;
…
(p)shopping centre, if the use exceeds 6000m² of gross floor area in the LC1 Sub Area or 2000m² of gross floor area in the LC2 Sub Area;
…

Table 4.10.1: Assessment Categories and Relevant Assessment Criteria for
Local Retail and Commercial Zone – Making a Material Change of Use

Column 1 Defined use or use class	Column 2 Assessment category	Column 3 Relevant assessment criteria – applicable code if development is self‑assessable or requires code assessment
COMMERCIAL / INDUSTRIAL
Shopping Centre— inconsistent use if … more than 2000m² of gross floor area in LC2 Sub Area [(refer s 4.10.5(3)].	Impact Assessable, if the use exceeds … 2000m² of gross floor area in the LC2 Sub Area. Code Assessable otherwise.	Urban Area Code (Part 4)— particularly the specific outcomes in section 4.3.3 and the Local Retail and Commercial Zone (division 10) Commercial and Industrial Code (Part 12, division 7) Parking Code (Part 12, division 9).

CITATION:	Devine Limited v Ipswich City Council [2013] QPEC 72
PARTIES:	DEVINE LIMITED ACN 010 769 365 (Applicant) v IPSWICH CITY COUNCIL (Respondent)
FILE NO:	1107/2012
DIVISION:	Planning & Environment
PROCEEDING:	Originating Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	6 November 2013
DELIVERED AT:	Brisbane
HEARING DATE:	17 and 18 October 2012
JUDGE:	Andrews SC, DCJ
ORDER:	Amended Originating Application Dismissed
CATCHWORDS:	Where preliminary approval granted – where no appeal – whether approval in conflict with the planning scheme – whether no evidence of traffic impact – whether no evidence of economic impact – whether no consideration of relevant matters – whether amended application was a minor change – where assessment manager treated substantially different development as minor change – whether to apply s 440 of the Sustainable Planning Act to excuse noncompliances in consequence of treating the amended application as a minor change Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 Dunghutti Elders Council (Aboriginal Corporation) RNTBC v Registrar of Aboriginal and Torres Strait Islander Corporation [2011] FCA 370 Kin Kin Community Group Inc v Sunshine Coast Regional Council [2010] QPEC 144 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Shop, Distributive and Allied Employees Association v National Retail Association (No. 2) [2012] FCA 480 Judicial Review Act1991 (Qld) Sustainable Planning Act2009 (Qld), s 242, s 329(1)(b), s 350(1)(d)(i), s 440, s 456(1)(a) Aronson, Dyer and Groves Judicial Review of Administrative Action Fourth Edition, at p 282
COUNSEL:	Fynes Clinton of counsel for the Applicant Flannagan SC and Brien of counsel for Respondent
SOLICITORS:	McCullough Robertson for the Applicant Clayton Utz for the Respondent